The applicability of the Evidence Act to inquiries under the Workmen's Compensation Act and the eligibility of a workman, already suffering from a disease for which he may be responsible, for compensation under the Act.

ORDER :- This is an application for a certificate under Article 133(1) (c) of the Constitution to the effect that the case involves a substantial question of law and is fit for appeal to the Supreme Court.

2. While dismissing an appeal against the order of the Commissioner for Workmens Compensation this Court had agreed with the finding of the Commissioner that the death of the workman was not caused by an accident arising out of his employment.

3. Death of the workman had occurred at San Francisco (U. S. A.) and the Post mortem examination was performed there itself. According to the post mortem report the cause of death was fatty degeneration of the liver. It had been argued for the applicant that the report was not proved properly and secondary evidence was not admissible. The finding about the cause of death was therefore not based on legal evidence. The matter has been dealt with in paras 2 to 10 of this Courts judgement. Three reasons have been given to repel this argument and one of these is that the provisions of the Evidence Act do not apply in all the complexities to inquiries under the Workmens Compensation Act. Whether a Commissioner under the Workmens Compensation Act is a Court as defined under Section 3 of the

Evidence Act and is bound by the provisions of the Evidence Act is a substantial question of law of general importance and needs to be decided by the Supreme Court. In a different context this question has been considered in Rajiyabi v. M. M. and Co., AIR 1970 Bom 278. But that case does not relate to the applicability of the Evidence Act for claims filed before the Commissioner appointed under the Workmens Compensation Act.

4. Second point is whether the case of a workman, who was already suffering with a particular disease for which he may himself be responsible, and had died when he was under employment, would come under Section 3(4) of the Workmens Compensation Act. This question arises in the present case because the deceased was suffering from fatty degeneration of liver due to alcoholic habits but was on duty till the night previous to his death on board the ship where he was employed as a table waiter. This also is a substantial question of law of general importance and needs to be decided by the Supreme Court. 5. A certificate of fitness under Article 133 (1) (c) of the Constitution be granted to the applicant as per the rules of this Court.

Certificate granted.